The Obama administration’s prosecution of National Security Agency whistleblower Thomas Drake collapsed this week, days before his trial was set to begin. Prosecutors dropped felony charges under the Espionage Act; Drake pled to a single misdemeanor and will not go to prison. “This is a victory for national security whistleblowers and against corruption inside the intelligence agencies,” said my colleague Jesselyn Radack at the Government Accountability Project, which led the support campaign for Drake. “No public servant should face 35 years in prison for telling the truth.”
Congratulations to Tom Drake, winner of the 2011 Ridenhour Truth-Telling prize.
Climate Science Watch is a sponsored project of the Government Accountability Project. Sometimes we turn our attention from the climate change problem when it is timely to take a position in support of whistleblowers on other urgent issues – especially when they are unjustly attacked for inconveniencing the powerful and the status quo instead of being recognized as essential public servants.
Washington Post coverage June 10 (June 9 online) included this:
Ex-NSA official Thomas Drake to plead guilty to misdemeanor
Days before his trial was set to begin, former National Security Agency manager and accused leaker Thomas A. Drake accepted a plea deal from the government Thursday that drops the charges in his indictment, absolves him of mishandling classified information and calls for no prison time.
In exchange, Drake, who was facing 35 years in prison if convicted of violating the Espionage Act, will plead guilty to a misdemeanor of exceeding authorized use of a computer. He will pay no fine, and the maximum probation time he can serve will be capped at one year.
“It’s an unambiguous victory for Drake,” said Jesselyn Radack, director of national security at the Government Accountability Project, who supported Drake on whistleblower issues. “The prosecution’s case imploded.”
The deal brings to a close a five-year ordeal for Drake, 54, who came under investigation in 2006 in leaking to the media and who was indicted in May 2010 on allegations of willful retention of “national defense” or classified information, obstruction of justice and making a false statement.
It also is a setback for the Obama administration’s effort to punish alleged leakers of national security secrets using a widely criticized World War I-era law.
“As a tool for prosecuting leakers, the Espionage Act is a broad sword where a scalpel would be far preferable,” said Stephen Vladeck, a constitutional law professor at American University. “It criminalizes to the same degree the wrongful retention of information that probably should never have been classified in the first place and the willful sale of state secrets to foreign intelligence agencies.”
Justice Department spokeswoman Laura Sweeney said she could not comment on a pending matter.
Drake, who is set to appear in U.S. District Court in Baltimore on Friday morning before Judge Richard Bennett to enter the plea, has asserted all along that he never passed classified information to a Baltimore Sun reporter who wrote stories exposing NSA mismanagement. …
New York Times coverage by Scott Shane (“Ex-N.S.A. Aide Gains Plea Deal in Leak Case; Setback to U.S.”) included this:
… The deal represented the almost complete collapse of the government’s effort to make an example of Mr. Drake, who was charged last year in a 10-count indictment that accused him of obstructing justice and lying to investigators. It is uncertain whether the outcome will influence the handling of three pending leak cases or others still under investigation.
The case against Mr. Drake is among five such prosecutions for disclosures to the news media brought since President Obama took office in 2009: one each against defendants from the National Security Agency, the C.I.A., the F.B.I., the military and the State Department. In the past, such prosecutions have been extremely rare — three or four in history, depending on how they are counted, and never more than one under any other president.
Officials say they have been prompted by a bipartisan belief in Congress and in both the George W. Bush and Obama administrations that leaks were getting out of hand.
The flurry of criminal cases has led to both praise and criticism for Mr. Obama, who entered office promising unprecedented transparency but in less than three years in office has far outdone the security-minded Bush administration in pursuing leaks. …
Jesselyn A. Radack, a lawyer for the nonprofit Government Accountability Project who had rallied support for Mr. Drake, hailed the outcome.
“This is a victory for national security whistle-blowers and against corruption inside the intelligence agencies,” she said. “No public servant should face 35 years in prison for telling the truth.” …
Wall Street Journal: “Plea Deal Ends Leak Case Against Former Official”
Baltimore Sun: “Espionage charges dropped against ex-NSA manager”
Government Accountability Project news release (underlining added):
June 09, 2011
Huge Victory for National Security Whistleblowers
(Washington, D.C.) – The Government Accountability Project (GAP) has learned that client Thomas Drake has agreed to a plea bargain arrangement on the charges brought against him by the federal government. While Drake was facing 10 felony counts and 35 years in jail, this settlement agreement stipulates no jail time or fines shall be imposed on him. In return, Drake will plead guilty to a mere misdemeanor. Drake appears publicly in court tomorrow to enter his plea.
The action taken against Drake by the Department of Justice was widely seen as a bellwether case for the current crop of the Obama administration’s prosecutions under the Espionage Act against national security and intelligence whistleblowers. Today’s news is an absolute victory for whistleblowers.
GAP Homeland Security and Human Rights Director Jesselyn Radack commented, “This is a victory for national security whistleblowers and against corruption inside our intelligence agencies. The prosecution’s case was built on sand and crumbled under the weight of the truth.
“Tom Drake went through all proper and legal channels. His experience proves that, presently, there is no safe way to draw attention to wrongdoing at intelligence agencies. The intelligence community cannot keep using a broken classification system to escape responsibility for its internal corruption and lawbreaking.”
GAP represents Drake on whistleblower issues. He has a separate criminal defense team.
Radack continued, “No public servant should face 35 years in prison for telling the truth. The prosecution’s case imploded in the face of numerous negative rulings and huge public support for Tom Drake. This is incontrovertible proof that the Espionage Act should not and cannot be used to silence whistleblowers.”
Regarding the Obama administration’s ongoing prosecution of national security whistleblowers, Radack stated “Whistleblowers are not spies. The Espionage Act is a particularly heinous tool that should never be used to cover up government wrongdoing and punish whistleblowers that expose it. This sends a message to the Justice Department to abandon its perverted strategy of prosecuting whistleblowers under the Espionage Act.”
Tom Drake Background
Drake is a former National Security Agency (NSA) employee who is being prosecuted under the Espionage Act for retaining, not leaking, classified information about a data collection program that was costly, threatening to Americans’ privacy rights, and wholly undeveloped, despite the availability of a cost-effective, functional alternative that respected Americans’ privacy. He did everything by the book, raising concerns through official channels first — including senior NSA management, the Defense Department’s inspector general, and Congress. His concerns were ignored. Drake started, legally, communicating with a reporter — never sharing any classified information whatsoever. A series of articles exposed this billion-dollar affront to privacy rights. For more information, see GAP’s Tom Drake page at http://tinyurl.com/4dlabu3
Must-read article in The New Yorker by Jane Mayer: “The Secret Sharer: Is Thomas Drake an Enemy of the State?”
From CBS 60 Minutes story on Drake, May 22, 2011 (unfortunately, CBS appears to have taken video from this program down from their website already):
“Why do you think you were charged under the Espionage Act? That’s pretty rare,” Pelley pointed out.
“To send a chilling message,” Drake asked.
“To whom?” Pelley asked.
“To other whistleblowers, to others in the government, not to speak up or speak out. Do not tell truth to power. We’ll hammer you,” Drake said.